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ELRCPartially AllowedELRC Cause (Kisii) — Application dated 13.11.2020 (Respondent) and Contempt Application dated 6th May 2021 (Claimant)· [2021] KEELRC 488 (KLR)

Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers v Kisii University Council [2021] KEELRC 488 (KLR)

Employment and Labour Relations Court
16 November 2021
2,397 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kisii University was found in contempt for carrying out redundancies a court had ordered stopped, and its Vice Chancellor personally faces citation.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Kisii (Wasilwa, J) determined two applications: a Respondent's application dated 13.11.2020 seeking transfer of the claim to the ELRC at Kisumu, where two related matters (ELRC Cause No. 9 of 2020 and ELRC Petition No. 2 of 2020) were pending, and a Claimant's contempt application dated 6th May 2021 seeking citation of the Vice Chancellor of Kisii University for disobeying orders issued on 28th October 2020 restraining the implementation of redundancy notices dated 1st October 2020. The transfer application was unopposed, the Claimant having filed no response. On contempt, the Respondent argued that the injunction captured only the individual redundancy notices of 1/10/2020 and not the substantive notice dated 30/9/2020 issued to the union under section 40 of the Employment Act, and that the alleged victimisation, salary withholding and terminations were not proved to the near-criminal standard required in contempt proceedings. The court rejected this distinction, holding that the individual notices concerned the claimant's members and that the redundancy process as a whole had been stayed. The Respondent's conduct in proceeding with the stayed redundancies amounted to direct and blatant contempt. The court allowed the contempt application and directed that only the Vice Chancellor be cited as head of the University, with costs in the cause. Transfer to Kisumu was to occur only after the contempt application is concluded by this court.

Key legal issues

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01

Contempt of court orders staying redundancy

Holding

The Respondent is in contempt for proceeding with redundancies stayed by the court's order of 28/10/2020

Reasoning

The court found that the orders of J. Mbaru of 28/10/2020 stayed the redundancy letters dated 1/10/2020, which concerned the claimant's union members. The Respondent's argument that only the 30/9/2020 notice to the union was substantive, and that the injunction did not cover the redundancy process, was rejected as farfetched. Proceeding with the redundancies amounted to direct and blatant contempt, warranting citation of the Vice Chancellor as head of the institution.

p. 4
02

Transfer of the claim to Kisumu ELRC

Holding

The claim shall be transferred to Kisumu ELRC after the contempt application is concluded, the transfer application being unopposed

Reasoning

The Respondent sought transfer to Kisumu where two related matters (ELRC Petition No. 2 of 2020 and Cause No. 9 of 2020) were pending, raising similar issues. The Claimant filed no response. The court noted the current cause concerns redundancy rather than normal termination, but found transfer appropriate for good order and jurisdictional purposes — only after the contempt application, which must be concluded by this court, is determined.

p. 4

Legal principles established

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  • Where an order stays a redundancy process, an argument that an earlier general notice was not covered by the injunction is untenable where the individual notices concern the same affected employees
  • Disobedience of a stay on redundancy effected by the court constitutes contempt

Court orders

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  1. 1.The contempt application by the Claimant dated 6th May 2021 is allowed
  2. 2.Only the Vice Chancellor of Kisii University is to be cited for contempt as head of Kisii University
  3. 3.The contempt application will be concluded by this court, and thereafter the claim is to be transferred to Kisumu ELRC, the transfer application having remained unopposed
  4. 4.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 162
  • Employment and Labour Relations Court Rules 2016Rule 17(1) and 38
  • Employment ActSection 40
  • Evidence ActSections 107 and 108

Cases cited (12)

  • Christine Wangari Chege V Elizabeth Wanjiru Evans and others
    UR
  • Kimani Gachuhi & Another V Evangelical Mission in Africa & 3 others
    [2018] eKLR
  • Mutitika vs. Baharini Farm Limited
    [1985] KLR 229
  • Linus Nganga Kiongo & 3 Others V Town Council of Kikuyu
    [2012] eKLR
  • Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited
    Nairobi (Milimani) HCCC No. 834 of 2002
  • Autar Singh Bahra and Another vs. Raju Govindji
    HCCC No. 548 of 1998
  • Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others
    Nairobi (Milimani) HCCS No. 1243 of 2001
  • Karuru Munyororo vs. Joseph Ndumia Murage & Another
    Nyeri HCCC No. 95 of 1988
  • Janet Kaphiphe Ouma & Another vs. International (Kenya)
    Kisumu HCCC No. 68 of 2007
  • Edward Muriga Through Stanley Muriga vs. Nathaniel D. Schulter
    Civil Appeal No. 23 of 1997
  • Interchemie EA Limited vs. Nakuru Veterinary Centre Limited
    Nairobi (Milimani) HCCC No. 165B of 2000
  • Drappery Empire vs. The Attorney General
    Nairobi HCCC No. 2666 of 1996
Jurisdiction invoked
Article 162 of the Constitution; Rule 17(1) and 38 of the Employment and Labour Relations Court Rules 2016

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers v Kisii University Council [2021] KEELRC 488 (KLR)", Case Analysis (2021). ELRC Cause (Kisii) — Application dated 13.11.2020 (Respondent) and Contempt Application dated 6th May 2021 (Claimant). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/488/eng@2021-11-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.